Legislation for Endangered Species Coordination Act passes Pa. House committee

By Brent BurkeyNovember 29, 2013 at 3:00 AM

Changes to a House bill this month are designed to ease concerns over the plan to increase oversight and transparency in processes to designate endangered or threatened species and make sure development planners have access to information.

The presence of endangered or threatened species can determine how and to what extent land is developed.

House Bill 1576, voted out of committee Nov. 13 by the House Game and Fisheries Committee, no longer contains a requirement for agencies to redesignate species within a two-year time frame. If not, the species would automatically be removed from a state centralized database for making permit decisions.

But one provision that remains would make designations of endangered or threatened species by the state Game Commission and Fish and Boat Commission go through the Independent Regulatory Review Commission — a step they don't need to make today.

Wild-trout stream designations also would need to go through the commission.

In addition, the bill also still calls for the centralized database with information about species and habitats.

State Rep. Jeff Pyle, R-Armstrong and Indiana counties, proposed the House bill. In the state Senate, the companion legislation is Senate Bill 1047, which remains in committee.

Pyle said inspiration for his legislation came from the way industry along the Allegheny River has been harmed because of a mussel living in the waterway.

An amended field survey provision now has additional language to make agencies do a turnaround of no more than 30 days to determine whether a project is cleared to proceed or if mitigation or avoidance steps are needed, Good said.

The bill also used to say that a survey did not have to happen unless "acceptable data" existed to say a species is present at a site. The phrasing is changed in the new version to require a field survey if the data indicate an organism's presence is likely.

"A lot of these changes that were made were done to try to work with the commissions and some of the sportsmen and women and even some of the environmental advocacy groups," Good said. "It's unfortunate that some of those groups I just mentioned, some of those organizations I mentioned, are still opposed."

One of the most contentious elements of the proposal — for independent regulatory review of designations — remains in the bill. Good said he doesn't buy the argument that going through the IRRC subjects the designation process to politics over science.

The commission's review must adhere to parameters that include protecting natural resources, he said.

Opposition remains

Removing the language for redesignation makes the bill better, Pennsylvania Fish and Boat Commission Executive Director John Arway said. But the legislation still is not good, he said.

Whether a species is threatened or endangered is a matter of science, and regulations for protections based on those designations have already gone through independent regulatory review, Arway said.

Also, a centralized database appears potentially redundant. Arway said his and other agencies have been working on improvements to the Pennsylvania Natural Diversity Inventory, which already exists, to make it a more refined and accurate tool.

The system basically provides a yes-or-no answer: Is a project site in conflict with a species location?

If the answer is no, the receipt becomes part of the permit application. If the answer is yes, the system directs the applicant to the state agency with jurisdiction over the species, he said.

System improvements take into better account whether the project is actually in an area where it could affect the species instead of just within a rough distance, Arway said.

The agency also has been already working with industry officials to provide early information, such as pending wild-trout stream designations, and has ramped up survey work to identify these streams, he said.

The commission already has promoted the locations of wild-trout streams because people want to fish there, Arway said.

Improvements welcomed

In general, a lot of the species on endangered or threatened lists have specific habitat requirements, and more developed areas tend to have less available habitat because it was "eliminated a long time ago," said Martin Friday, senior biologist with Lancaster County-based engineering firm Rettew Associates Inc.

"So, for certain things, you're more likely to find it up in the more remote areas. Northern tier, big forests," Friday said. However, species of concern do exist in southern parts of the state.

The current system for identifying potential species issues does not provide detailed enough information, he said.

"You have to wait for the Fish and Boat Commission (for example) to get back with you," Friday said.

Having better information in earlier stages of larger projects, particularly natural-gas pipelines or electrical lines, would help planners, Friday said.

The projects mean companies have to acquire rights-of-way. A firm could spend money on some parcels, then a conflict could arise on one of the last needed pieces of land, he said.

"If you knew where it was, you could pick a route to get from one side to the other that doesn't run right through the middle of sensitive habitat," Friday said. "The goal is to lay your project out so you won't have impacts and they'll give you clearance to proceed."

Friday also said he sees practical value in sending wild-trout stream designations through the independent regulatory review process, because it allows an outlet for people to find out about the decisions.

Are Central Pennsylvania hangups already rare?

David Miller, president and CEO of Lancaster County-based David Miller/Associates Inc., said that, in 30 years, he hasn’t seen many instances where the presence of a species has meant real changes for a proposed project.

“It doesn’t happen a lot,” he said.

If there is a hit in the existing state reference system known as the Pennsylvania Natural Diversity Inventory, sometimes it just means the data is old and an agency can clear up the issue administratively, he said.

A field survey by a qualified person might be required, Miller said. Most of the time, the organism isn’t present at a site, he said.

The fact that the firm doesn’t often come across problems might be because zoning and utility availability already steer them away from potential habitats, Miller said.

Thomas Englerth, senior client manager with York County-based C.S. Davidson Inc., has had a few projects held up beyond a field study in the past 20 years by species-related issues. But not many, he said.

“Where development is, based on good land to develop on and where zoning takes you, you don’t often find those species,” he said.

Especially in the past several years, there really haven’t been problems as less development has been occurring in the first place, Englerth said. What has taken place is more likely to be redevelopment work instead of construction on greenfield sites.

Englerth said looking at streamlining in general is good, even though he doesn’t see huge issues presently. Nobody wants to develop where there are rare species, and the current PNDI system lets someone find out if there might be a conflict and determine a next course of action, he said.

“I can do a PNDI right now today on any property,” Englerth said.

Eric Gladhill, also a senior client manager with C.S. Davidson, said he is probably more likely to come across species-related issues more than others at the firm because of the nature of his work. Natural-gas distribution utility projects involve crossing streams or wetlands, Gladhill said.

But even if a project site generates a hit in the state’s system, telling the state about a boring technique to go under the area of concern can get the needed agency sign-off, he said.

Sometimes seasonal restrictions or field studies required at a certain time of year can slow the process, Gladhill said.

“That’s the largest impact, when you have these seasonal restrictions or you have to go out and do a field study,” he said. “I’ve never seen one of our projects get shut down.”